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City of Carbondale v. Bower
State: Illinois
Court: 5th District Appellate
Docket No: 5-01-0646 Rel
Case Date: 07/10/2002

Notice

Decision filed 07/10/02. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

NO. 5-01-0646

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT


 

THE CITY OF CARBONDALE,  ) Appeal from the
) Circuit Court of
        Petitioner-Appellee,  ) Jackson County.
)
v. ) No. 01-CH-45
)
GLEN BOWER, Director of Revenue for the  )
Department of Revenue; THE DEPARTMENT )
OF REVENUE; KIRK BROWN, Secretary of )
Transportation of the Department of Transportation; )
and THE DEPARTMENT OF TRANSPORTATION, ) Honorable
) William G. Schwartz,
        Respondents-Appellants. ) Judge, presiding.
 

 


JUSTICE HOPKINS delivered the opinion of the court:

The respondents-Glen Bower, Director of Revenue for the Department of Revenue;the Department of Revenue (DOR); Kirk Brown, Secretary of Transportation of theDepartment of Transportation; and the Department of Transportation (DOT)-appeal the trialcourt's grant of a preliminary injunction to the petitioner, the City of Carbondale. On appeal,the respondents contend that the trial court lacked jurisdiction to consider the city's petitionfor a permanent injunction because the action was barred by sovereign immunity and,alternatively, that the trial court's entry of the preliminary injunction was an abuse ofdiscretion. We reverse and dismiss the cause of action for the lack of subject matterjurisdiction.

FACTS

On July 11, 2001, the city filed motions for leave to file an action against therespondents to restrain and enjoin the respondents from disbursing public funds. The cityalso filed a petition that sought a temporary restraining order (TRO) and a permanentinjunction against the respondents. The motion for leave to file a petition for a permanentinjunction asserted that the matter was being brought under the injunction provision ofsection 11-301 of the Code of Civil Procedure, entitled "Disbursement of Public Moneys"(735 ILCS 5/11-301 (West 2000)).

That same day, without notice to the respondents and in the respondents' absence, thetrial court conducted a hearing on the request for a TRO. The city advised the court that itreceives money from the DOR and the DOT pursuant to the State Revenue Sharing Act (30ILCS 115/0.1 et seq. (West 2000)) and under the Motor Fuel Tax Law (35 ILCS 505/1etseq. (West 2000)). The statutes require that the amount of funds distributed to the citythrough the State Revenue Sharing Act and under the Motor Fuel Tax Law be based uponthe latest census conducted by the federal government. The 2000 census was certified bythe Secretary of State on May 29, 2001. The city advised the trial court that the 2000 censusstated that the city has 6,352 less people than certified by the 1990 census. The city assertedthat the 2000 census was erroneous, based on figures the city had compiled, and that the citywould suffer irreparable harm if the DOR and the DOT were allowed to disburse the fundspursuant to the 2000 census, because the city would be unable to recover the funds oncedistributed, even if the 2000 census was corrected at a later date. The trial court entered aTRO as follows:

"A. [The respondents are to refrain] from using the 2000 census of the U.S. CensusBureau for the allocation of funds to the Petitioner in accordance with the StateRevenue Sharing Act and the Motor Fuel Tax Law; and

B. That the Respondents are hereby directed to use the 1990 census for the allocationand disbursement of funds to the Petitioner in accordance with the State RevenueSharing Act and the Motor Fuel Tax Law; and

C. That the Respondents are directed to disburse only that amount to the Petitionerwhich equals funding proposed under the 2000 census and place the remainingbalance into a designated escrow account under the name of Petitioner andestablished by the Respondents ***."

The respondents filed a motion to dissolve the TRO on July 16, 2001. Therespondents also filed a motion to dismiss the petition for a TRO and a permanent injunctionunder sections 2-615 and 2-619(a)(1) of the Code of Civil Procedure (735 ILCS 5/2-615,2-619(a)(1) (West 2000)). In the motion to dismiss, the respondents alleged, inter alia, thatthe city's petition was substantially insufficient in law and that the court lacked subjectmatter jurisdiction under the doctrine of sovereign immunity.

At the motion hearing held on July 17, 2001, the trial court held that the procedurerequired under section 11-301 was not followed, and the court vacated its TRO but thenconsidered whether another TRO could issue.

The trial court concluded that it had subject matter jurisdiction to consider the city'smotions, pursuant to section 11-301. The court entered a preliminary injunction againstrespondents Bower and Brown and ordered them to refrain from using the 2000 census forthe allocation of funds to the city under the State Revenue Sharing Act and the Motor FuelTax Law, directed Bower and Brown to use the 1990 census to allocate the funds to the city,and ordered that only the amount due under the 2000 census be disbursed to the city and thatthe difference between the allocation under the 2000 census and the allocation under the1990 census be deposited into an escrow account in the name of the city until the censusmatter is resolved.

The respondents filed an interlocutory appeal, pursuant to Supreme Court Rule307(a)(1) (188 Ill. 2d R. 307(a)(1)), from the court's order granting the preliminaryinjunction.

ANALYSIS

The respondents contend that under the doctrine of sovereign immunity the trial courtlacked subject matter jurisdiction to consider the city's petition. The city claims that thecourt has jurisdiction under section 11-301 of the Code of Civil Procedure because the citywas requesting the court to "restrain and enjoin the disbursement of public funds." The cityclaims that since the term "enjoin" is defined to mean "[t]o require a person, by writ ofinjunction, to perform *** some act" (Black's Law Dictionary 529 (6th ed. 1990)), thissection grants the city the right to sue Brown and Bower. The respondents alternativelyargue that the trial court's grant of the preliminary injunction was an abuse of discretion.

Section 11-301 of the Code of Civil Procedure states as follows:

"Who may file action. An action to restrain and enjoin the disbursement ofpublic funds by any officer or officers of the State government may be maintainedeither by the Attorney General or by any citizen and taxpayer of the State." 735 ILCS5/11-301 (West 2000).

In order to file an action under section 11-301, the plaintiff must be "any citizenand taxpayer" (emphasis added), the complaint must be against an "officer or officers of the Stategovernment," and the complaint must be an "action to restrain and enjoin" (emphasis added)the disbursement of public funds. 735 ILCS 5/11-301 (West 2000). Here, the city is not ataxpayer, so it fails to meet one requirement of section 11-301.

In addition, the city is not asking to "restrain and enjoin" the disbursement of publicfunds but is asking that the funds be disbursed in accordance with its desires. The city urgesa statutory construction of the term "enjoin" that would allow a mandatory injunction,i.e.,an order for the State to disburse funds rather than to restrain from disbursing funds. Thecity seeks to restrain the application of the 2000 census, not the disbursement of funds,although the respondents argue that would require a restraint from disbursing to another city. In support of its construction of the statute, the city sets forth one definition of the term"enjoin." However, Black's Law Dictionary defines "enjoin" in two ways: "To legallyprohibit or restrain by injunction *** [or] [t]o prescribe, mandate, or strongly encourage***." Black's Law Dictionary 550 (7th ed. 1999). The term "enjoin" in section 11-301 isconnected to the term "restrain" by the word "and." Generally, principles of statutoryconstruction interpret the term "and" as conjunctive rather than disjunctive. SeePeople exrel. Aramburu v. City of Chicago, 73 Ill. App. 2d 184 (1966). Thus, if we construe "restrainand enjoin" as the city asks, it would produce an incongruent result-to both prohibit andmandate the disbursement of funds.

The statutory construction urged by the city also would conflict with the doctrine ofsovereign immunity. The doctrine of sovereign immunity was abolished "except as theGeneral Assembly may provide by law." Ill. Const. 1970, art. XIII,

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